ADM Milling Company

Plain-English summary

OSHA cited ADM Milling for failing to guard the lower pulley and moving steps of a continuous-belt manlift installed in 1954. The judge held that the manlift standard's grandfather provision, reinforced by OSHA's own 1991 interpretation letter, made the standard inapplicable to manlifts installed before its 1971 effective date. He rejected the agency's position that the grandfather language applied only to one design-requirements paragraph as inconsistent with the regulation's text and structure. Because OSHA failed to prove that the cited standard applied, the citation was vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.68(b)(10)(ii)
• Outcome: The single serious citation and proposed $7,000 penalty were vacated.
• Key point: OSHA's manlift standard did not apply to a manlift installed before the regulation's 1971 effective date.

Full text (OSHRC public release)

                   UNITED STATES OF AMERICA
       OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

                     Complainant,
                                                          DOCKET NO. 10-1362
                             v.

ADM MILLING COMPANY,

                     Respondent.

Appearances:

    Aaron J. Rittmaster, Esq., Office of the Solicitor, U.S. Department of Labor, Kansas City, Missouri
             For Complainant

    Frederic L. Kenney, Esq., Archer-Daniels-Midland, Decatur, Illinois
             For Respondent

Before: Administrative Law Judge Benjamin R. Loye

                                    DECISION AND ORDER

                                        Procedural History

    This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29

U.S.C. §651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”)

conducted an inspection of an ADM Milling Company (“Respondent”) facility in Lincoln,

Nebraska on March 31, 2010. As a result of the inspection, OSHA issued a Citation and

Notification of Penalty to Respondent alleging one serious violation of the Act with a proposed

penalty of $7,000.00. Respondent timely contested the citation and a trial was conducted on

January 26, 2011 in Lincoln, Nebraska. Both parties submitted a post-trial brief and the case is

ready for disposition.

                                             Jurisdiction

    Jurisdiction of this action is conferred upon the Occupational Safety and Health Review

Commission pursuant to Section 10(c) of the Act. The record establishes that at all times
relevant to this action, Respondent was an employer engaged in a business affecting interstate

commerce within the meaning of Section 3(5) of the Act, 29 U.S.C. §652(5). Slingluff v.

OSHRC, 425 F.3d 861 (10th Cir. 2005).

                                       Applicable Law

   To establish a violation of a specific regulation promulgated under Section 5(a)(2) the

Act, the Secretary must prove by a preponderance of the evidence that: (1) the cited standard

applied to the condition; (2) the terms of the standard were violated; (3) one or more of the

employees had access to the cited condition; and (4) the employer knew, or with the exercise of

reasonable diligence could have known, of the violative condition. Astra Pharmaceutical Prod.,

9 BNA OSHC 2126, 1981 CCH OSHD &25,578 (No. 78-6247, 1981).

                                       Stipulations

   The parties offered, and the court accepted, the following stipulations:

   1.      ADM Milling Co. manufactures flour and other milled wheat products at its

facility located at 540 South Street, Lincoln, Nebraska (“ADM Facility”).

   2.      Certain of ADM Milling‟s production workers are represented by Bakery,

Confectionary, Tobacco, and Grain Millers Local 31G.

   3.      ADM Milling is not exempt from coverage of the Occupational Safety and Health

Act.

   4.      At the ADM Facility, there is a manlift elevator D. Photographs which fairly and

accurately depict portions of the manlift elevator D are attached hereto as Exhibits 1, 2 and 3.

   5.      Attached hereto as Exhibit 4 is an illustrative diagram of a continuous belt

manlift.

   6.      The subject manlift elevator D was installed at the ADM Facility and has been in

use at the ADM Facility since 1954. The manlift elevator D is Model 54-473 and was

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manufactured by J B Ehrsam and Sons Manufacturing Co.

   7.      The base and lower pulley for manlift elevator D is installed in the basement of

the grain elevator at the ADM Facility.

   8.      ADM employees access the basement of the grain elevator, including the area

around manlift elevator D, for purposes of inspection and maintenance.

   9.      ADM employees who accessed the basement of the grain elevator include

Elevator Supervisor, Gene Winkler, and Maintenance Supervisor, Dave Stepanek.

   10.     At the time of the inspection and at all times prior thereto, the lower boot pulley

and moving steps of the manlift elevator D were not protected by a guard to prevent employee

contact with the pulley or steps.

   11.     On June 1, 2010, the US Department of Labor, Occupational Safety and Health

Administration, by its Area Director, issued Citation No. 314054453 containing Citation 1 Item 1

to ADM Milling at 540 South Street, Lincoln, Nebraska. The Citation references 29 C.F.R.

§1910.68(b)(10)(ii) and alleges as follows:

           The employer is failing to protect employees from caught in or

           between hazards on the continuous belt manlift. The lower boot

           pulley was not guarded to prevent employee contact with the

           pulley or steps.

   12.     29 CFR §1910.68(b)(3) provides that all new manlift installations and equipment

installed after the effective date of these regulations shall meet the design requirements of the

“American National Safety Standard for Manlifts ANSI A90.1-1969.”

   13.     The OSHA Directorate of Compliance Programs has issued a letter of

interpretation dated December 5, 1991 which interprets the application of 29 CFR §1910.68 to

manlifts installed before August, 1971. A copy of this letter of interpretation is attached hereto

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as Exhibit 5.

   14.      The Area Director (Peoria, Illinois) of Occupational Safety & Health

Administration issued a letter dated January 10, 2011 to ADM, a copy of which is attached

hereto as Exhibit 6.

                              Additional Factual Findings

    Three witnesses testified at the hearing: (1) Michael Connett, an OSHA Compliance

Safety and Health Officer, (2) David Frazelle, Respondent‟s Divisional Health and Safety

Manager, and (3) Bonita Winingham, Area Director for OSHA‟s Omaha Area Office. Based on

their testimony and discussion of evidentiary exhibits, the court makes the following additional

factual findings:

   On March 31, 2010, CSHO Connett conducted a follow-up OSHA inspection

(subsequent to an inspection approximately one year earlier) at Respondent‟s Lincoln, Nebraska

facility. (Tr. 21). During the follow-up inspection, CSHO Connett concluded that the lower boot

and pulley area on the bottom of manlift elevator D was insufficiently guarded. (Tr. 22, 25; Ex.

1, 2). He testified that the metal bars in front of the manlift‟s lower pulley did not protect

employees from moving parts because an employee could still contact them. (Tr. 25-26). CSHO

Connett concluded that this condition violated the manlift guarding requirements in 29 C.F.R.

§1910.68(b)(10)(ii). (Tr. 28). Employee interviews conducted during the inspection revealed

that maintenance personnel worked in the immediate area of the lower pulley on manlift elevator

D approximately two hours per week. (Tr. 28-29). He characterized the proposed violation as

serious because contact with any of the moving parts on the lower pulley could result in

significant injuries, such as broken legs, torso injuries, and concussions. (Tr. 29-30). In

calculating the proposed penalty for the violation, CSHO Connett provided no reductions for

violation history, employer size, or good faith, as Respondent is a large employer who had

experienced a fatal accident approximately one year earlier. (Tr. 31-32).

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Respondent asserted at trial, and in post-trial argument, that 29 C.F.R. §1910.68 does not

apply to manlift elevator D because it was installed in 1954, approximately 17 years before

OSHA‟s manlift standard was promulgated. 36 F.R. 8754-01. The application subparagraph

debated by the parties in this case, §1910.68(b)(3), provides:

         Design requirements:     All new manlift installations and equipment

         installed after the effective date of these regulations shall meet the

         design requirements of the “American National Safety Standard for

         Manlifts ANSI A90.1-1969”, which is incorporated by reference as

         specified in §1910.6, and the requirements of this section [emphasis

         added].

   CSHO Connett acknowledged that he has applied the §1910.68(b)(3) “grandfather”

exemption to manlifts in other investigations, but was less than clear as to why the exemption

language did not apply to the manlift in this case. (Tr. 43). CSHO Connett conceded on cross-

examination that another standard, 29 C.F.R. §1910.212, imposes general guarding requirements

to protect employees from rotating parts, but Complainant elected to cite Respondent under

§1910.68. (Tr. 40-41).

   Mr. Frazelle, Respondent‟s Divisional Health and Safety Manager, has worked for

Respondent in various safety-related positions for 31 years. (Tr. 50-51). He is specifically

familiar with manlift elevator D at the Lincoln, Nebraska facility. (Tr. 51-52). He is also a

current member of the American Society of Mechanical Engineering‟s Committee A90.1, which

focuses on safety standards for belted manlifts. (Tr. 51). He explained that the cited

subparagraph, §1910.68(b)(10)(ii), was part of the original standard when §1910.68 was

promulgated in 1971. (Tr. 56). In addition to the regulatory language itself, he explained three

additional bases for Respondent‟s belief that manlift elevator D is exempt from OSHA‟s manlift

standard. First, on December 5, 1991, OSHA‟s Directorate of Compliance Programs in

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Washington, D.C. issued an official Letter of Interpretation addressing manlifts and the

“grandfather” provisions of §1910.68(b)(3). (Tr. 54; Ex. 5). In responding to an inquiry from a

regulated employer, OSHA stated, in pertinent part, that “since the manlifts you ask about were

installed in 1956 and 1964 and the effective date of the regulations is August 1971, you are not

bound by the requirements of the standard.” (Ex. 5). Second, OSHA Team Leader Bernard

Hauber, with OSHA‟s Omaha Area Office, provided a news interview to a local television

station after the fatal manlift accident at Respondent‟s facility a year earlier during which he

stated that OSHA‟s manlift regulation does not apply to manlifts installed prior to 1971. (Tr. 75-

77; Ex. R-9). Third, Respondent received a letter in January 2011 from OSHA‟s Area Office in

Peoria, Illinois identifying numerous concerns about a similar manlift in another facility. In that

letter, OSHA asked Respondent to “voluntarily” remove the manlift from service, while

conceding that the manlift was “not violative of the standards.” (Tr. 58-59; Ex. 6).

   OSHA Area Director Winingham explained, when questioned about these three

evidentiary exhibits, that only OSHA‟s national office is authorized to issue official

interpretations of OSHA regulations. (Tr. 124-125). Therefore, of the three pieces of evidence

introduced by Respondent, only the 1991 Letter of Interpretation constituted OSHA‟s official

position on the exemption issue. When asked her opinion about the scope of the 1991 Letter of

Interpretation, Area Director Winingham testified that she understood it to mean that the

grandfather exception language in §1910.68(b)(3) applies only to itself, not the entire manlift

standard. (Tr. 127-128).

                                        Discussion

   The Secretary alleged in Citation 1 Item 1 that:

          Elevator “D” in the facility located at 540 South St., Lincoln, NE

          - The employer is failing to protect employees from caught in or

          between hazards on the continuous belt manlift. The lower boot


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pulley was not guarded to prevent employee contact with the

          pulley or steps.

   The cited regulation provides:

          29 C.F.R. §1910.68(b)(10)(ii): Location of lower pulley. The

          lower (boot) pulley shall be installed so that it is supported by the

          lowest landing served. The sides of the pulley support shall be

          guarded to prevent contact with the pulley or the steps.

   Generally, the first issue addressed in an analysis of a citation item issued to an employer

is whether Complainant has established that the cited regulation applied to the cited condition.

In this instance, application of the cited standard is the primary issue in dispute. Complainant

argues that the court should defer to its interpretation on the scope and application of its own

standards. However, when the meaning of a standard is in dispute, the Commission looks first to

the text and structure of the standard itself. General Motors Corp., 17 BNA OSHC 1217 (Nos.

91-2973, 91-3116, 91-3117, 1995); Unarco Commercial Products, 16 BNA OSHC 1499 (No.

89-1555, 1993). If the meaning of the regulatory language is „sufficiently clear‟ then the inquiry

ends there. Id. If the court finds that the meaning of the standard is unclear, but Complainant‟s

interpretation of the standard is unreasonable in light of its plain language, Complainant‟s

interpretation is not entitled to deference. Dept. of Labor v. Occup. Safety and Health Rev.

Comm., 938 F.2d 1116 (10th Cir. 1991).

   The court finds that the plain language of §1910.68(b)(3), as well as the 1991 Letter of

Interpretation issued by OSHA, clearly and unequivocally establish that the requirements of the

manlift standard, §1910.68, do not apply to manlifts installed before 1971. Area Director

Winingham‟s interpretation that the language of §1910.68(b)(3) applies only to §1910.68(b)(3) is

illogical and unreasonable. Just as the definitions in §1910.68(a) apply to the entire manlift

standard, so too does the effective date language in §1910.68(b)(3). Complainant‟s contrary

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interpretation in this proceeding is therefore entitled to no deference and is rejected.1

    Accordingly, Complainant failed to prove by a preponderance of the evidence that the

cited standard applies to the manlift at issue in the citation. Since application of the standard is a

required element to prove a prima facie violation of the Act, Citation 1 Item 1 will be vacated.

                                                ORDER

    Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that

Citation 1 Item 1 is hereby VACATED.

Date: March 21, 2011 /s/______
Denver, Colorado BENJAMIN R. LOYE
Judge, OSHRC

1
The court also notes that Complainant‟s evidence concerning the lack of an electronic hyperlink on www.osha.gov
between subparagraph 1910.68(b)(10) and OSHA‟s Dec. 5, 1991 Letter of Interpretation on manlifts was
unpersuasive, and merely reflective of the manner in which OSHA‟s IT personnel structured its website. (Tr. 89-97).
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